GRATIAEN J.—Abdul Coder v. Commissioner R. I. P. R.
1955Present: Gratiaen J.
ABDUL CADER, Appellant, and COMMISSIONER FORREGISTRATION OF INDIAN AND PAKISTANIRESIDENTS, Respondent
S. C. 368—Appeal under section 15 of the Indian and PakistaniResidents (Citizenship) Act, No. 3 of 1949
Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Section 6 (2) (1)—“ Assured income ”—Proof.
Documentary evidence is not the only method of establishing an assuredincome within the meaning of section 6 (2) (X) of the Indian and PakistaniKesidents (Citizenship) Act.
jLJLPPEAL against an order made under the Indian and PakistaniResidents (Citizenship) Act.
C. Shanmuganayagam, for the applicant appellant.
V. Tennekoon, Crown Counsel, for the Attorney-General.
Car. adv. vult.
July 21, 1955. Gratiaen J.—
This is an appeal against an order refusing to register the applicant,his wife and their minor children as citizens of Ceylon under the provisionsof the Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949.
The appellant is an Indian Moor. He was born in India but wasbrought over to Coylon by his parents about 40 years ago when he wasa young lad, and he has since settled in this country. He married inIndia in 1935 when he was on a visit to that country, and his wife accom-panied him to Ceylon shortly afterwards. Their children, one of whomwas born in 1942, and the other in 1945, attend school in Colombo wherethe family has resided for many years.
The Deputy Commissioner has not rejected the evidence that theappellant and his wife possess the necessary residential qualificationsfor registration, but the application was refused solely on the ground that
C1RATIAEN J.—Abdul Coder v. Commissioner Ji. I. P. It.
the appellant had failed to satisfy the following requirement laid ilownin section 0 (2) (1) of the Aot :—
“ that the applicant is possessed of an assured income of a reasonable
amount or has some suitable business or employment or other lawful
means of livelihood to support the applicant and the applicant’s
dependants, if any. ”
On this issue the evidence led at the inquiry was all one way. Accordingto the appellant, who was corroborated by other witnesses, he is wellestablished as a dealer in hair oil and similar commodities which he sellsas a “ hawker ” in the city of Colombo. His daily sales average Rs. 25to Rs. 30, and his monthly profits amount to Rs. 175 to Rs. 150 a month.He also earns a small subsidiary income as a Radio artiste.
“ Hawkers ” do not generally appear to keep regular books ofaccount, and the appellant, not being an exception to the rule in thisrespect, could not satisfy the Department’s obsession for “ documentaryproof ” which is regarded as the only kind of acceptable evidence of anyfact which must be established under the Act. For this roason, theapplication was rejected. But there was plenty of evidence placed beforethe investigating officer at the preliminary investigation, and later beforethe Deputy Commissioner himself, which supported the appellant’s case.For instance, he produced receipts which show that for a number of yearshe has regularly paid Rs. 13*58 (later reduced by law to Rs. 12’58) eachmonth as the rental for the dwelling-house in which he and his family reside.This is surely some indication of a regular source of income. Moreover,there is evidence that he maintains his family in reasonable comfort.He sends his children regularly to school, and the investigating officerhas apparently failed to discover any evidence from which one couldinfer that the appellant and his family had ever been in financial diffi-culties. Finally, the appellant produced before the investigating officera certificate from a Member of Parliament (now a responsible CabinetMinister) who stated that he had known the family for “ the past fifteenyears ” and considered them fit and proper persons for being grantedthe privilege of Ceylon citizenship.
•Section 6 (2) of the Act requires a reasonable guarantee that the newlyadmitted citizen and his family will not become a burden on the.State.He must therefore establish that he possesses a sufficient income (earnedor unearned) to support himself and his dependants, and that there arefair grounds for ass timing that he will continue to do so. If the uncon-tradicted evidence of the appellant and his witnesses be truo, thef-tatiitory test luus been satisfied. His source of income is not veryexciting, but it is not unlawful. The past history of his business provesthat it is reasonably lucrative, and his anxiety to continue to carry iton is in itself a fair indication of his own confidence in his future pros(>octs.T hold, on the material before me, that a prima facie, case for registrationhas been made out, and I direct the Commissioner to take action accord-ingly on that basis. The appellant is entitled to his costs which I fixat Rs. 105.
The machinery of the Act would work far more satisfactorily, I amsure, if the functions of investigating officers under section 8 (2) are
r,74SANSONT .T.—Or Silva i*. Aheynmlne
performed with more imagination. In the past, the exploded depart-mental theory that nothing but documentary proof suffices as “ primafacie proof ” of any fact has induced them to concentrate too much onsearcliing for loopholes in the documents produced before them by aparticular applicant. Better results would be achieved, for instance,by making independent inquiries from his neighbours or alleged businessassociates as to the truth or falsehood of a man’s claim to have residedand carried on business in a particular locality for a long period of time,or to be engaged in carrying on a fairly lucrative trade in the city ofColombo. The failure of an investigating officer to discover rebuttingevidence on these lines is itself a point in favour of the appellant's case.
ABDUL CADER , Appellant, and COMMISSIONER FOR REGISTRTION OF INDIAN AND PAKISTAN